The Freedom of Information Act (FOIA) will turn 50 years old this summer. Today, few journalists, lawyers, activists or public officials these days can imagine life without it.
But in the early 1950s, when John Moss requested basic employment documents from the U.S. Civil Service Commission, the first-term congressman from California was simply told “no.” And under the law at that time, there was nothing he could do about it.
“Moss was outraged over executive arrogance,” Columbia University scholar Michael Schudson said at the UO School of Journalism and Communication’s (SOJC) What is Media? conference in April. “This was Mr. Smith going to Washington.”
Over the next 12 years, Moss waged an unrelenting campaign to open up the executive branch’s inner workings to public scrutiny. According to Schudson, who also authored “The Rise of the Right to Know,” Moss used Cold War politics to bolster his case for transparency, arguing that to rebuke Soviet totalitarianism, the United States needed to live up to its values of free and open democracy.
“Moss spoke repeatedly in the Congress and in public speeches of the ‘paper curtain’ of executive secrecy in Washington,” Schudson said. “He directly accused the executive of using Soviet tactics.”
Thanks largely to Moss’s efforts, the Freedom of Information Act finally became law in 1966, and it’s now regarded as one of the most important pieces of public accountability legislation in U.S. history. But FOIA has also been plagued with problems, including a growing backlog of information requests and a persistent culture of government secrecy.
To kick off last month’s What is Media? conference, the SOJC convened a panel of scholars, journalists and lawyers to discuss how FOIA and state-level “sunshine” laws function on the ground — and how the internet age is creating both new opportunities and new challenges for journalists and other open government advocates. The panelists included:
- Tim Gleason (moderator), professor and former dean, SOJC
- Duane Bosworth, attorney, Davis Wright Tremaine
- Michael Kron, special counsel to the attorney general, State of Oregon
- Mark Rumold, senior staff attorney, Electronic Frontier Foundation
- Lee van der Voo, staff reporter, InvestigateWest
- Brent Walth, assistant professor, SOJC
- Kyu Ho Youm, professor, SOJC
An excerpt from the panel discussion is included below. It has been edited for brevity and clarity.
Tim Gleason: I’d like to start with a juxtaposition of the culture of transparency that Michael describes in the book and the actual on-the-ground experience working with FOIA and state public records laws. On the ground, do you feel a culture of transparency?
Mark Rumold: It might surprise you all, but I’m actually somewhat bullish on the culture of transparency. … I actually agree with what Michael said — that FOIA has to be considered one of the most significant statues that has been passed in the past 50 years. I think transparency activists and journalists are folks who are not easily satisfied, so they raise a lot of issues with FOIA that rightfully are significant issues. It can be incredibly cumbersome to use. The backlogs with agencies can take years. I have FOIA requests that have been pending for four or five years that have never been answered. … But I think the core of FOIA is sound and really significant. There is certainly government over-assertion of exemptions and government misuse of those exemptions, but there’s actually more opportunity now than ever before to use FOIA to gain access to those kinds of core secrets — not necessarily in a straight-forward path — but to get information that surrounds the fringes of those secrets. … So it’s probably a little surprising to hear me say this, but I actually think FOIA is alive and well. Maybe it doesn’t work in the way people expect it to, but I think it’s doing good work.
Duane Bosworth: If I were objective, I might be bullish, but I’m not. My clients want all of the information in two days, and they often don’t get all of the information. In fact, they rarely do, and they sometimes don’t get it for five years. … I am not prepared to be objectively bullish. Time is extraordinary, money is extraordinary and, frankly, government attorneys are becoming much better educated about the ways in which they can claim exemptions. … FOIA does work, but it often takes way too long, and that’s not acceptable.
Gleason: Brent, you look like you want to say something?
Brent Walth: My experience has mostly been with the state public records law, and I’m old enough to remember when it worked. The law passed in 1973, and when I started using it in the early or mid-1980s, you could pretty much get what you asked for without much trouble. I look at the state records law in three distinct eras. The first one was marked by Dave Frohnmayer, when he was attorney general. Dave Frohnmayer did an extraordinary thing by putting the orders and precedents into a book so that everyone could see how the law was supposed to work. I’ve done a little bit of research, and about 63 percent of the orders during that era were for all or partial disclosure, which is a pretty good ratio. After Frohnmayer, it became a disaster, and because we’re part of a journalism school, let’s name names: Hardy Myers, who was attorney general for 12 years, wrecked the state’s records law with a series of orders that went against disclosure time and time again. The ratio was about 28 percent, based on what’s in the handbook. My favorite denial during that period: A newspaper editor knew the state had collected information about lightning strikes and wanted to do a story about where there’d been lightning in central and eastern Oregon. The state turned him down because the location of lightning strikes was considered to be confidential and trade secrets. … We’re now in a third era. The last two attorneys general have done a pretty good job at trying to reverse some terrible decisions that had been made. The problem is that a lot of state agencies have now gotten into the habit of believing they have the right to run up costs and delay requests, and they find every way possible not to disclose. … We’re in a period of real uncertainty over whether it’s going to swing back to openness or not, and it’s worth careful watching.
Gleason: Let me ask a broader question. In 2014, I believe Homeland Security received something like 300,000 FOIA requests, and while those of us on this panel tend to look at how hard it is to get records, I think there’s one number out there that only 9 percent of all FOIA requests are not fulfilled. If only 9 percent aren’t being fulfilled, that seems an awful lot of information that’s being made public. So what’s the problem?
Lee van der Voo: Boy, that’s a tough one. It’s the quality of the response, I think, and it’s time and cost. I can tell you that at InvestigateWest, we avoid FOIA. If we need something, we’re just going to get it from someone [without using the FOIA process]. FOIA is not a practical way to go get something. I had some FOIA requests last year that are still pending, and with the ones that did go through, what I got is pages and pages and pages of redacted documents, which are useless. Is that compliance? I don’t know. But the time it takes to even get there just is not worth wasting. So I’d say that’s sort of the major issue, as well as the cost. I think we had $8,000 in legal fees last year just trying to get access to some of this stuff.
Rumold: I guess my bullishness owes in part to a privileged position on my behalf. I both submit my own FOIA requests for EFF, and I also get to sue, and that’s something most journalists or citizens don’t have the ability to do. And by suing, I automatically get my requests moved to the front of the line. Maybe that does color my perception of FOIA a little bit. There’s no question that the delays are ridiculous. The number of requests are only increasing, especially with new tools that are available online and automation in FOIA requesting. There are tools — and there are people doing things [with automation] — that greatly increase the volume of requests that government is handling. I don’t mean to criticize those types of requests. I think they’re entirely valid and entirely legitimate, and they should be responded to. But there’s a serious increase in them, and there’s also a serious shortage of funding from Congress. It’s an amazing power play, because Congress wrote the law to apply to a different branch of government, and they exempted themselves from it and exempted the judiciary. They’re putting this huge burden on the executive branch and not backing it up with the amount of funding that the executive branch needs in order to actually make the law really work. And I think there’s also some executive branch disinterest in making it fully functional, so it’s kind of a combination.
Michael Kron: I’ve seen all kinds of things from the inside of government in terms of why public records requests don’t get responded to quickly. But one thing from my experience that you maybe don’t think about is that these were laws written in the 1970s, when records were a fairly limited subset. You didn’t write everything down. You might write a memo if it was something important, you might write a letter to somebody if it was something important, but you didn’t spend your entire eight-hour workday sitting at your computer writing emails back and forth with colleagues and people on the outside. I think, frankly, that the government doesn’t really have effective tools for managing email disclosures, and when you’re in a legal arena like in Oregon, where we have 543 exemptions, I think there’s a combination of fear of violating the law and just [a sense of] being overwhelmed by the volume of information that exists in the email age. I would say that is far more what I see as the problem day to day than any sort of nefarious government intent to hide things. I’m not saying that doesn’t exist or that sometimes the lack of courage takes the form of, “We’re not going to disclose something — even though we probably should and we easily could — [because] we don’t want to answer any question about it.” That happens, but I think for me what is really the bigger systemic problem is that these laws written in the ‘70s are hard to comply with when you’re now generating, for each of your employees, at least a couple hundred emails per day.
Bosworth: Well, you know there’s at least one state that actually considers public records to belong to the public, and it doesn’t actually even charge. Of course, that can run up against a nut who’s looking for a million pages of whatever, [so] there has to be a workaround there. But what a novel concept that these are actually our records and should be delivered.
Kron: Yeah, I don’t disagree with that overall sentiment, Duane, but I think one of the things we have to think about is that we’re looking at 543 exemptions. It’s completely insane and out of control … but some of the exemptions are for things like people who are recipients of public assistance services. Do we really want to have a system where [the public] just owns the emails related to this person’s need for public assistance, or disability, or whatever their misfortune is? I think if the answer is uniformly “yes,” then you’re right. That’s a fairly easy system to implement. If we don’t care about any of these areas of confidentiality, then it’s easy to be transparent. But I think it’s hard for me to see a road from where we are now, especially in terms of our values of personal privacy, to a place where we can just make all records immediately public.
Bosworth: Let me just back up one sentence [and say] that exemptions are actually the very least of my worries. It’s the other issues that I’m really talking about.
Kron: Right, but I think the exemptions play into those, because it makes it more difficult to process the records.
Gleason: Brent mentioned a moment ago a culture of closure. How do you create a culture of compliance and transparency?
Walth: It’s one of those things where it’s a great law until somebody wanted to use it, right? That’s what I’ve seen progressively over time with states record law. You talk about the fees — we’re now told up front that it’s going to cost hundreds of dollars, thousands sometimes, before we even get to the question of exemptions. So it’s being used to deliberately chill asks. People will walk away from their requests before they even know if they can get the records. I’ve had agencies try to charge me for legal time so that lawyers can review newspaper clippings that the agency had in their files. People try to charge us for looking at information that everybody understands is not exempt, but they’re going to put it through the ringer anyway. So it’s these fees, it’s this specter of fees — and the specter of time — but mostly money. You don’t even start to have the debate about whether it’s a trade secret or classified.
Bosworth: What I’d add very quickly is that transparency is a huge hassle. Look at the astonishingly poor record of the Obama administration. Truly, this will be analyzed for some time to come, and it’s not what you might have expected from him. … Once you get [in office], it doesn’t feel comfortable anymore to be transparent. It’s difficult.
Van der Voo: Another thing that’s worth pointing out is that in the state of Oregon, improper disclosure is a felony in some cases. If I worked for state government, I’d be petrified. You know, the easiest thing to do is run to the attorneys and make sure you’re not doing something wrong. I think that’s how you get to these obstructively high costs, because we need an attorney to do anything. Part of the reason Michael’s task force may have some real potential is they’re talking about taking all 543 exemptions and putting them in one spot, so that people can look for those and say, “OK, here’s what I’m supposed to do.” Right now they’re scattered all over the law, and it’s a very scary thing to be responsible for not breaking the law if you can’t even find it.
Walth: Yeah, I’d also say that most of these exemptions are optional … [but] agencies use the ability to exempt them almost entirely. I think there’s been one time in my career where an agency said to me, “We don’t have to give this to you, we’re giving it to you anyway.” I completely agree with Lee on this — when you’re in the position of trying to make this decision, you’ll be very, very careful. Most of the time, state agencies are looking for reasons not to disclose.
Kyu Ho Youm: Also, we talk about some kind of structure of power. Usually, [the officials making disclosure decisions] are not at the top of the hierarchy. Usually, they are at the bottom. It means they always play safe, because if they make some kind of judgmental error, they will be subject to sanctions immediately.
Bosworth: I have no problem with the clerk at the desk of the school district saying, “Hey, I don’t know if I can give you the salary of the superintendent.” I don’t have any trouble with the clerk being confused about that. I have a problem with a lawyer being involved and making some absurd claim about what information we can’t give to you.
Story by Ben DeJarnette, MS ’15